Peart Charan Laha vs Fanindra Narayan Ray.

Guha Ray, J.—This is an appeal by the Defendants from an appellate decree reversing a decree passed by the trial court in a suit by the Respondent for ejectment of the Defendants from a tenancy in two plots of land, namely, C.S. plots Nos. 8362 and 8362/9891 recorded in khatiyan Nos. 1930 and 1929 respectively of Mouzah Chinsurah within the Hooghly-Chinsurah municipality. The Plaintiff''s case briefly was that his father Rajendra Narayan Ray let out the two plots to one Annada Charan Laha, the predecessor of the present Defendants for the purpose of erecting a stable on it and that the tenancy was a thika tenancyat-will which was terminated by service of proper notice to quit from the beginning of Ashwin, 1352 B.S. The Plaintiff also claimed to recover rent for the years 1350 and 1351 B.S. at the rate of fourteen annas and six pies. The Defendants challenged the claim for ejectment by setting up a permanent tenancy and also contended that the suit was liable to be stayed under the provisions of the Bengal Non-agricultural Tenancy (Temporary Provisions) Act and further challenged the legality, the validity and the sufficiency of the alleged notice to quit. Their plea also was that the rate of rent was eight annas per year and not fourteen annas and six pies as recorded in the C.S. khatiyan.

The learned trial court found that the tenancy was a yearly tenancy and that notice of sis months is required and that the tenancy was a permanent one. The trial court further found that under the provisions of the Bengal Non-Agricultural Tenancy (Temporary Provisions) Act, the suit was liable to be stayed. The claim for recovery of arrears of rent was decreed by the trial court at the rate of fourteen annas and six pies per year for two years but'' the claim for recovery of khas possession was dismissed. On appeal the decree of the trial court dismissing the Plaintiff''s claim for khas possession was set aside and even that part of the Plaintiff''s claim was decreed. It is against this part of the appellate decree that the present appeal is directed.

The only point argued before me on behalf of the Appellant is that under the provisions of Section 88 of the West Bengal Non-Agricultural Tenancy Act of 1949, the provisions of this Act are applicable even to an appeal and u/s 7 of this Act it is not open to a court to pass a decree in ejectment against a tenant holding non-agricultural land. This Act came into operation with effect from May 15, 1949. The trial court''s decree was passed on February 21, 1947 and the decree of the lower appellate court was passed on July 15, 1948, so that both the decrees were passed before the West Bengal Non-Agricultural Tenancy Act, 1949, came into operation. The appeal was filed on November 15, 1948, so that the West Bengal Non-Agricultural Tenancy Act of 1949 came into operation after the filing of the appeal. Section 88 of this Act is as follows:

The provisions of this Act shall have effect in respect of all suits, appeals of proceedings including proceedings in execution for ejectment of a non-agricultural tenant which are pending at the date of commencement of this Act.

The relevant portion of Section 7 which is invoked on behalf of the Appellants is as follows:

Notwithstanding anything contained in any other law for the time being in force or in any contract (2) if the non-agricultural land comprised in any tenancy which has been or is created after the commencement of the Transfer of Property Act, 1882, has been held for a term of not less than twelve years without any lease in writing then (i) the tenant holding the non-agricultural land comprised in such tenancy shall not be ejected by his landlord from such land except on the ground that he has used such land in a manner which renders it unfit for use for the purpose of the tenancy.

The contention on behalf of the Appellants is that, in view of these provisions, the decree passed has got to be reversed, as there is a finding by the lower appellate court that the tenancy was created as early as 1316 or 1317 B.S. and as it is the case of neither party that the tenancy was created by a written lease.

It is certainly true that the learned lower appellate court finds that the tenancy was created as early as 1316 or 1317 B.S. and it is equally true that when no lease was produced and when neither party spoke of any written lease in connection with the creation of the tenancy, one is entitled to infer that in fact there was no written lease. The only conditions which have to be satisfied before the right of non-liability to ejectment conferred on the tenant holding non-agricultural land u/s 7 of the West Bengal Non-Agricultural Tenancy Act, 1949, accrues to him, are first that the tenancy must have been held by him in the event of its creation after the commencement of the Transfer of Property Act, 1882, for a term of not less than twelve years and, secondly, that it must not have been created by any lease in writing. On the materials, these two conditions are fulfilled. The question now is whether in the circumstances of this case the court is entitled to reverse the decree of the learned lower appellate court in view of the provisions of Sections 88 and 7 of the West Bengal Non-Agricultural Tenancy Act, 1949. It is true that even though the decree is not reversed it cannot be put into execution in view of these provisions so that even if the Defendants had not appealed they would be entitled under these provisions to resist the execution of the decree on the ground that they are not liable to ejectment under the provisions of this Act. Even so, the question arises whether the decree passed before the Act came into force is liable to be reversed when the Act came into force luring the pendency of the appeal. Section 7 seems to me to nean that if the necessary conditions are fulfilled there will be no lability on the part of the tenancy to ejectment except when he last used the land in a manner which makes it unfit for use for the purpose of the tenancy. Thus, if the suit were instituted after he Act came into force it would have been open to the Defendants to plead Sections 88 and 7 as a bar to a decree for ejectment. u/s 88 under which the provisions of the Act are to have effect a respect of pending appeals, to my mind, on a proper construction, it is open to the tenant to say that even where a decree was classed before the Act came into force the decree will be liable to reversal in view of the new right conferred upon the tenant of non-agricultural holding by the provisions of Section 7 of the West Bengal Non-Agricultural Tenancy Act, 1949.

The result then is that the decree passed by the learned lower appellate court in respect of the Plaintiff''s claim for recovery of has possession is set aside and that part of the Plaintiff''s claim stands dismissed. As there is no appearance on behalf of the Respondent, I make no order for costs.